In the Preliminary Issue decision in Hamad and Travelers Insurance, the Licence Appeals Tribunal barred the application from proceeding pursuant to section 55(1)(2).  It found that the applicant failed to attend properly scheduled section 44 IE assessments and comply with section 33 requests for information.  


At issue was the Non-Earner Benefit and medical benefits.  The applicant submitted an OCF-3 Disability Certificate indicating NEB entitlement, but produced no other medical documents.  The insurer advised the claimant that it had not received any objective medical evidence to support the NEB claim.  It provided to the applicant IE notices in order to determine initial NEB entitlement and MIG applicability. 


The applicant ultimately refused to attend the IE assessments on four separate dates.  Travelers then raised the Preliminary Issue of section 44 non-compliance and sought to bar the application from proceeding.  The applicant argued that the IE notice letters did not comply with section 44(5), as they contained “boilerplate” statements and failed to specify the medical reasons to explain why she was required to attend the IEs. 


Adjudicator Boyce rejected the applicant’s arguments and barred the application.  He found that the applicant had likely impeded Traveler’s right to assess the claim by failing to attend the IEs and comply with valid section 33 requests.  He noted that during the claim, she had submitted treatment plans for 6 assessments of her own.  Significantly, Adjudicator Boyce referenced Traveler’s submissions indicating that it had never received the family doctor’s records, that the OHIP decoded summary was delayed 23 months and that the treatment and prescription records were delayed 38 months. 


Adjudicator Boyce found that the notices were reasonably required to determine eligibility for the benefits claimed.  He concluded that the IE notices “easily provided” a principled rationale based on the limited medical evidence available.  He wrote decisively: “the Schedule does not require the insurer to fabricate a medical reason to support a s. 44 assessment where the applicant has not provided the medical evidence to support entitlement that is exclusively in their control”.   Although the notices themselves contained the requisite section 44 information, he found that any perceived deficiency in the notices was cured by the extensive correspondence between Travelers and the applicant.  In this correspondence, Travelers consistently reiterated its reasons for the section 44 IE assessments and its section 33 requests for documentation, thereby sufficiently putting the applicant on notice. 


The decision affirms the insurer’s well established right and continuing duty to assess and adjust the claim.  An applicant cannot claim lack of medical reasons in an IE notice as being a sufficient basis to invalidate the IE notice where the insurer lacks the ability to assess the claim and consistently advises the applicant of section 33 non-compliance.  In these situations, the applicant is understood to have notice and would be fully aware of the medical reasons for the IE assessments.  The applicant is always obligated by statute to attend properly scheduled IE assessments, and such claims of deficient IE notices will not overcome a statutory bar of the application.  


Jonathan B. White is a member of the Licence Appeal Tribunal (LAT), Examination Under Oath (EUO), Estate Litigation and Simplified Procedure practice groups, and is the author of this blog. If you have a question about this decision or a similar file, please contact Jonathan at 416.777.5204